While a different brief for the ACA’s opponents continues to beat the Gruber dead horse, he is mercifully absent from the Adler/Cannon brief. Instead, the lawsuit’s architects cite a letter sent by 11 Texas House Democrats, which they say constitutes evidence for the assertion that “[m]any House members disapproved of the Senate passed PPACA, some because they recognized it conditioned subsidies on states creating Exchanges.”

Adler and Cannon’s characterization of the letter is blatantly dishonest. It says absolutely nothing about subsidies being unavailable on federally established exchanges. The letter’s argument that under the Senate bill “millions of people will be left no better off than before Congress acted” — which Adler and Cannon quote — is preceded by a discussion of how some conservative states have cut or failed to expand benefits under Medicaid and CHIPRA.

In other words, the concern of the Texas Democrats is not that federally established exchanges would not provide subsidies to insurance purchasers. Rather, their concern is that if conservative states established exchanges they would do so badly, and hence make it impossible for some residents to obtain affordable insurance. Adler and Cannon stand the meaning of the letter on its head.

Tacitly recognizing that the argument they attribute to the House Democrats is not remotely supported by the text, Adler and Cannon attempt to conscript one of the country’s foremost health care reporters into their crusade, citing an NPR report by Julie Rovner to buttress their misreading of the letter’s meaning. But, again, nothing in Rovner’s story says that the Senate bill would not provide subsidies on federally established exchanges. I contacted Rovner by email, and she confirmed that “there was never any discussion about only state exchanges offering subsidies that I was party to. I never meant to imply it in my story.”

Wait — it gets even worse for Adler and Cannon. The letter not only fails to lend a shred of support for their argument, it also destroys another of their key claims. One of the many problems with their approach is that it nonsensically assumes that Congress established a federal backstop that was intended to fail. Responding to this obvious objection, Adler and Cannon have suggested that Congress “reasonably expected that states” would establish exchanges, which explains why they didn’t bother to provide the subsidies. The letter cited by Adler and Cannon in this brief, however, makes clear that this assumption is erroneous. “A number of states opposed to health reform have already expressed an interest in obstruction,” the Texas Democrats correctly observe.

The federal backstop was not created by accident — it was in the bill because it was well understood that not every state would establish an exchange before the deadline, and because failing to create a workable federal exchange would provide strong incentives for conservative state governments to obstruct the ACA.

As things stand, then, the only evidence for the Moops-invaded-Spain theory is the comments of President, Speaker of the House, Senate Majority Leader, Secretary of State, Governor of all 50 states, and Seattle Seahawks offensive coordinator Jonathan Gruber. (Note: offer void in 2010 or 2014.)

One footnote about this double own-goal is that I believe that for a long time Adler’s position was that evidence about the intent of House members was irrelevant because the ACA was a Senate bill. Apparently, this “principle” was applicable until he thought he found “evidence” that supported his interpretation of the statute. (This kind of thing is apparently more widespread than you’d prefer to think.) I’d hope that if I was going to make things up in a brief submitted to the Supreme Court I’d have a better cause than “kicking millions of people off their health insurance,” though.

Once Brill explained the suit to Grassley, the senator responded “oh, that’s ridiculous. We obviously meant that the subsidies would go to the federal exchange and not just the state exchange,” according to Brill.

Though Adler would probably just dismiss this as quid pro quo for the Cornhusker Kickback. (Yes, I know.)

Jim Caldwell

I don’t understand why Adler and Cannon don’t just punt on the legislative intent question and stick with “the statute says what it says, duh!”. Punting is always your most dangerous weapon.

Joe_JP

they believe in the “go on fourth down” strategy?

Scott Lemieux

As I say in the piece, I think they realize that “the card says Moops!”, while not quite as risible factually, is a political loser. It’s more attractive to pretend that you’re bravely upholding the real will of Congress.

Given this Supreme Court, they’d probably be pretty safe just showing faith in their defense, though.

politicalfootball

We all know that if the SCOTUS decision goes against Obamacare, it won’t have anything to do with the quality of the arguments.

timb

That’s what Adler said to me on Twitter. “Intent didn’t matter because the statute is clear”

Cannon told Sarah Kliff of Vox that he was “100 percent convinced” that both those who drafted the ACA and those who voted for it wanted it this way.

So he just 100% lies. Yay.

Scott Lemieux

The second one is really amazing. Smarter troofers, like Ramesh Ponnuru, and least know enough to fudge on that point.

sibusisodan

Isn’t that a messaging thing, though? If he hedges on the issue of drafting intent, doesn’t that immediately cede the field to the deference shown to executive agencies in applying the law?

So he has to lie, if he wants to win.

Craigo

You’re assuming that his Chevron analysis is anything more sophisticated than sticking his fingers in his ears.

Scott Lemieux

Not really — he can just say that some of the people who voted for it may have wanted to establish federal exchanges, but it’s irrelevant.

stryx

I can’t say that I’ll ever understand how this case got before the SC, based as it is on a pack of lies and a citation of a fcking news article. This is the majesty of the law I hear about?

Davis X. Machina

The various organs of the State — its courts, its departments, its agencies — exist to serve the needs of the Party, and not the other way round because it is the Party, and not the State, that is the Vanguard of the Revolution, a Revolution in which the Party, not the State, has the leading role.

In fact, we await with anticipation the eventual withering-away of the State.

All power to the soviets of preachers and hedge-fund managers!

timb

As a lawyer, let me assure, there has never been a majesty to the law. It’s just a mirror to society, the more corrupt and venal and oligarchical society is, the more the law will bend to reflect it.

burnspbesq

Tim Jost from W&L Law has a good summary of the amicus briefs in support of Respondents at Balkinization.

brugroffil

You would think that all of the justices would be at least a little insulted by people blatantly lying to them in the briefs.

Craigo

As in all other fields, judges want to be told what they want to hear.

brugroffil

In this case, they’re all being told “we think you’re really, really dumb”

Dr. Ronnie James, DO

All signs point to “laugh this out of court.” But between Scalia’s ability to Humpty Dumpty anything and Roberts inevitably rediscovering the invisible doctrine of “equal sovereignty of because I said so”, I’m not sanguine.

politicalfootball

I think an anti-ACA ruling would break new ground in a way that equal sovereignty did not.

After all, in Constitutional interpretation, there’s at least some precedent for considering the document’s penumbras and whatnot. Maybe equal sovereignty is somewhere in the emanations.

This, however, is straightforward statutory interpretation of a law whose meaning, on this point, is entirely clear. Not only that, but to rule against ACA, the Court would have to find that the statute is not ambiguous – that the interpretation of the IRS (and Congress and everybody else) is obviously wrong. Or maybe the Court could overturn Chevron and argue that the IRS is due no deference on this.

Either way, SCOTUS is potentially gearing up to do something radical – a real breakthrough in conservative legal thought.

Craigo

Or maybe the Court could overturn Chevron and argue that the IRS is due no deference on this.

If the Court overturns the subsidies, this is my bet. It’s a safer political play to say that executive agencies do not deserve deference; the man on the street will sagely nod his head and agree.

Scott Lemieux

I don’t think this will happen. Scalia and Thomas are big fans of Chevron deference. It would be much easier to just lie about this statute.

Craigo

Thomas is ideologically very consistent and I’ll give him credit for sticking to his principles even when discarding them could get a better result.

Scalia I’m not so sure about.

Either way, they have plenty of outs here.

Scott Lemieux

But Chevron deference isn’t just grand theory; it’s a substantive legal policy that they both favor. It makes much for sense for them not to actually apply it in an individual case than to unnecessarily overrule a precedent they like.

politicalfootball

Plus, overturning Chevron only gets them part of the way. They would still have to misread the ACA. Might as well cut out the Chevron middleman and go straight to making up law.

timb

I fear they will overturn Chevron. Think about what these 5 dudes did in Citizens United and how much their partisan selves hate the regulatory state. This would help them dismantle so much of it: EPA carbon regulations, etc.

Scott Lemieux

Chevron has no particular ideological valence. Thomas and Scalia are big fans of executive power, and want to maintain the ability of Republican presidents to undermine the regulatory state. You can always refuse to apply Chevron in a particular case if there’s an executive act you don’t like (as we’ll see in June.) But there’s no way in hell Scalia and Thomas vote to overrule Chevron.

Scott Lemieux

Surely the Moops are entitled to equal sovereign dignitude. If this means infringing the sovereign dignitude of the states, so be it.

Captain Haddock

This is the first time in a while that I’m interested in hearing the oral argument. I went to law school in DC and walked over to hear oral arguments at the Supreme Court whenever I could. Usually I didn’t have a dog in the fight. I would skim through the principal briefs so I knew what was at issue, but that was about it. Over time, though, I lost interest. The theatrical aspect grew tiresome, especially from Scalia and the rest of the talk radio set.

This one, though … I kind of want to see just how intellectually dishonest they can be on the record. And I know, I know, there’s been plenty of that in recent cases. This one just feels special, a case that really should not have been granted cert, a case that really should be decided unanimously, a case that really is the culmination of years of Republican intransigence and dishonesty.

stryx

So, maybe Bush v Gore II: Fiat Redux?

They should get t-shirts made.

cs

I read that letter from the Texas Democrats, and it’s actually worse (for Adler-Cannon) than you say. Not only does the letter not mention loss of federal subsidies, but the letter has a long list of reasons why (the writers think that) state exchanges are a bad idea. If they really thought that state exchanges would lose federal subsidies, there is no way they would have left that off the list.

Like was said above, it seems like they are banking on the justices being so set on an outcome that the quality of the arguments don’t matter.

timb

Meanwhile, in a follow up embarrassment to the last time Scott taught his secessionist ass some manners, Patrick Frey, aka, Patterico fisks Scott’s “This Week” article. At one point, he shows himself himself unable to understand SCOTUS doctrines on Federalism (which is pretty funny since he’s a secessionist and nullify-curious), at others he just shows what a lawyer will do to twist a fact or argument to fit their interpretation.

It’s all a wonderful melange of ignorance, mendacity, and tribalism…

Lee Rudolph

Does a verdict of “fisking” depend merely on intent, or is competence also taken into account?

Scott Lemieux

Does a verdict of “fisking” depend merely on intent, or is competence also taken into account?

Since the original meaning of “fisking” was “wingnut cranks critiquing people who were right about the Iraq War,” I see no reason why it wouldn’t apply here.

Scott Lemieux

I’m fascinated to see how he invents a defense for his assertion that nobody ever dreamed that a single state would fail to establish an exchange, but not enough to read his post or anything.

timb

After reading the ridiculous things these people write, some part of me will be glad if a Republican wins in 2016, because (stay with me), it will be so nice to hear conservatives have to govern again. The last almost ten years have been embarrassing to them. Watching as their frustration and apocalyptic ranting became more extreme….watching state prosecutors become secessionists, Adler and the libertarian ilk not only embracing contemporary nonsense, but argue for the return of Lochner (e.g., ending the Federal rules re: child labor)*…John Boehner becoming so exasperated with the “I hate Obummer” caucus that he decides to meddle in another’s country’s domestic affairs and is handed his bum AGAIN by the White House.

In their desperation, all these people have is American Sniper, guns, and belief in Scott Walker as the great white hope.